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LCA weighs in on espionage crackdown

LCA weighs in on espionage crackdown

Law Council of Australia

The Law Council of Australia has offered its take on new espionage and foreign interference laws in a statement to the Parliamentary Joint Committee on Intelligence and Security Public Hearing.

LCA president Morry Bailes delivered an opening statement to the Parliamentary Joint Committee on Intelligence and Security Public Hearing on its Inquiry on the Foreign Influence Transparency Scheme Bill 2017, and the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.

“I would like to thank the committee for the opportunity to provide evidence to its inquiry on the Foreign Influence Transparency Scheme Bill 2017, and the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017,” Mr Bailes opened his statement with.

“The Law Council welcomes this inquiry and recognises the difficult challenges posed by Australia’s security environment in relation to the threat of espionage and foreign interference. We therefore support in-principle measures to ensure that Australia’s laws are sufficiently robust to guard against the undermining of Australia’s sovereignty and maintain the integrity of its political processes in light of foreign interference.”

First, addressing the Foreign Influence Transparency Scheme Bill, Mr Bailes noted that the LCA is concerned with the potential for the measures to have a “chilling effect on public policy dialogue”.

“These concerns arise due to the potentially broad reach of the scheme, the ambiguity of its key terms, and the significant penalties attached to non-compliance,” he said.

In terms of this bill, the LCA has made three key recommendations, according to Mr Bailes.

The first is that there be a narrowing of the scope of the bill, which thereby limits registration to lobbying activities that are materially controlled and directed by a foreign principal.

Secondly, the LCA recommended that current exemptions should be extended to ensure they cover professions that engage in advocacy that is incidental to their work, such as lawyers and doctors, Mr Bailes explained.

Thirdly, the LCA recommended charitable entities that are registered with the Australian Charities and Not-for-Profits Commission should be exempt for the registration and disclosure requirements.

“While it was not raised in the Law Council’s written submissions, we also wish to raise an issue of concern with regard to the ability for the Secretary of the scheme to delegate all or any of their powers to executive departmental officers under proposed section 67,” Mr Bailes added.

“The Secretary’s powers are substantial under these proposed measures, and includes the power to compel information and assess liability to register under the scheme, which if breached can have significant criminal repercussions. The Law Council is concerned as to the appropriateness of delegating these functions, and submit that such delegation, if allowed at all, should be confined to administrative functions only.

“The Law Council acknowledges that the intent of these measures is not to prevent or silence public discourse or foreign influence more generally. However, the potential for a muting of public policy engagement from stakeholders with foreign connections is exacerbated by the potentially broad scope of the proposals, together with the significant penalties contained within the bill, including strict liability offences and the potential for a seven-year imprisonment term.”

Furthermore, Mr Bailes specifically addressed the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 in his opening statement, noting that the legal body supports a number of the proposed measures, “including the proposed treachery and interference with political rights and duties offences, subject to certain limitations regarding the use of force or violence”.

Despite this however, Mr Bailes noted that the bill should not be passed in its current form due to several key concerns.

“As with the Foreign Influence Transparency Scheme Bill, many of the definition and offence provisions under the National Security Legislation Amendment Bill are too broadly drafted, and are likely to capture a range of benign conduct that may not necessarily amount to harm or prejudice to Australia’s national security,” he said.

“For example, the breadth of the key term ‘national security’ extending to the country’s political or economic relations with another country or countries may have a stifling effect on freedom of expression. The Law Council recommends that key terms be certain and well-defined and that the inclusion of these concepts in the definition of ‘national security’ be reconsidered.

“The Law Council further recommends that the proposed public official defence for a range of the proposed sabotage, espionage and foreign interference offences should not proceed. A person acting in their capacity as a public official should not be permitted to act with the intention of, or be reckless as to, prejudicing Australia’s national security. Such a defence for public officials appears antithetical to the very intent of the bill, namely, to protect Australia against acts of sabotage, espionage and foreign interference.

“Furthermore, such a defence would in practice be unnecessary in circumstances where a court may consider that the requisite fault elements, once proven by the prosecution, are inconsistent with a public official acting in their capacity.”

Moreover, Mr Bailes explained that this particular bill “does not provide for a good faith defence for the proposed sabotage, advocating mutiny and espionage offences”.

“The Law Council submits that a good faith defence should be available for these proposed offences to protect political communication, individuals or groups who [are] in good faith to oppose the actions of the Australian Defence Force or a defence of another country that is acting in co-operation with the Australian Defence Force and/or calls for a laying down of arms, and other persons acting in good faith, including journalists reporting or for individuals discussing domestic or international politics or economics,” he said.

“Finally, the proposed general secrecy offences in the bill should be amended in a manner which is consistent with the Australian Law Reform Commission’s Report No 122, Secrecy Laws and Open Government in Australia and the Independent National Security Legislation Monitor’s report Section 35P of the ASIO Act (2016).

“This would ensure that the offences are reserved for behaviours that harm, is reasonably likely to harm or intended to harm essential public interests. It would also mean that the offence provisions should be redrafted to treat insiders and outsiders separately to improve the proportionality of the measures. This is because ‘insiders’ owe a duty of confidence above that of ‘outsiders’.”

To rectify the concerns of this bill, Mr Bailes recommended that the committee do several things.

“In the absence of an express harm requirement, the offences should cascade in penalty and require that a person knew, or as a lesser offence, was reckless as to whether the protected information falls within a particular category (i.e. security classification or concerns Australia’s national security), and should not provide that strict liability applies to that circumstance,” he said.

“The secrecy of information offence provisions should be redrafted to distinguish between intentional and reckless conduct regarding the communication or dealing with inherently harmful information or causing harm to Australia’s interests.”

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